조세범칙조사에 있어서 세무공무원에 의한 압수․수색의 문제점과 해결방안

Abstract

The Korean law authorizes tax officials to intervene in the judicial proceedings. This authority includes the authority to dispose, such as the exclusive right to accuse and the principle of pre-positive notification of disposition, and the authority to investigate which allows questioning, seizure, and search of the suspect and the witness. The authority to seize and search is significant in that it is directly related with limiting citizens' property rights. However, tax officials who conduct tax offense investigations are not part of the investigation agency. While some consider them as special judicial police officers, such a view can hardly be recognized as a legal interpretation when it is not expressly stipulated in law. Since the tasks of tax officials are investigative tasks, they can be explained as the “special procedure of criminal suit,” but there is no pragmatic benefit in discussing it because there is no provision applicable to the “special procedure of criminal suit.”Since tax officials are administrative officers, they are not under the direction or control of prosecutors so problems arise due to the gap between the search and seizure rules in the Criminal Procedure Act and the contradictory procedural rules. The search and seizure provisions under the Procedure for the Punishment of Tax Evaders Act and the tax treatment regulations have incomplete legal rules and provide procedures completely different from those of criminal suits regarding the disposition of confiscated articles, objection procedure for the disposition of confiscated articles, emergency search and seizure, and confiscation of voluntary submissions. The lack of discussions on the search and seizure of tax officials is because the abovementioned procedures have been proven to be dead letters. When tax officials conduct tax offense investigations they mostly use data and reports of the general tax investigation. However, the recent revision of the Framework Act on Local Tax provides authority to investigate tax offenses to tax officials of local governments, and the local governments are eager to conduct tax offense investigations such as search and seizure, especially to the evaders of dispositions for arrears of taxes. Therefore, it is likely that problems will arise in future regarding the search and seizure of tax officials. In order to solve these issues, tax officials involved in tax evasion investigations must be appointed as specials judicial police officers. Regarding the expertise of tax evasion investigations, it would be appropriate to ensure independent investigation of tax officials and let them be directed by competent prosecutors.